Andrew L. Urban.
It began on November 22, 2023 and will continue for another fortnight from December 5, 2023: the defamation trial in which the respondents (TEN & Lisa Wilkinson) are trying to prove to the court that Bruce Lehrmann really did rape Brittany Higgins. They claim they did not defame him when publishing rape allegations against a legally innocent man. And justified under qualified privilege because it was a matter in the public interest. The mix of politics, the media and the law – not least the controversy around the ACT’s DPP and the Sofronoff inquiry – makes it a most consequential trial.
As I watched the entire trial proceedings in the Federal Court to date – along with thousands of others – (on the livestream from the 22nd floor of the Court building in Sydney) I saw it in the context of my writings over the past decade where the trial’s elements touched on so many of the issues that I have written about on this blog. And the trial regurgitates aspects of the case that raise a number of significant questions.
Lawyer and columnist Janet Albrechtsen at The Australian writes (2/12/2023): The question we must all wrestle with is how serious #MeToo allegations should be dealt with.
#MeToo advocates may have been delighted at the momentum started by The Project interview with Higgins, and unconcerned about any damage to Lehrmann. Critics, on the other hand, worry that the ends cannot justify the means, that the wider public interest in maintaining a defendant’s presumption of innocence bled away every time Higgins was celebrated for her bravery, treated as a victim by political and media supporters, not to mention by the ACT Victims of Crimes Commissioner, and promoted as the face of #MeToo in Australia.
Whatever your view on this larger issue, it cannot be denied this case became a media, political and legal circus – and a travelling one at that – from federal parliament to every part of the media, to the ACT Supreme Court to the ACT board of inquiry into the handling of the criminal trial and now the Federal Court. All because of one early decision by Higgins. Telling her story in the media before she had formalised a police complaint had the effect of unleashing a baying crowd free from the constraint of the rules against pre-trial publicity.
With the first half of the trial taken up by Bruce Lehrmann and Brittany Higgins in the witness box, examined and cross examined to test their credibility and truthfulness, trial judge Michael Lee was faced with the labyrinthine problem of untangling truths from lies. Both witnesses admitted to several lies and claimed bad memory. Lehrmann was adamant he did not rape Higgins. Higgins was adamant he did. She said … he said.
When Steven Whybrow (counsel for Lehrmann) suggested to Higgins that she was motivated to be vindicated by the prospect of money from her book deal with Penguin, she exclaimed “If I ever actually finish the book, I will donate all $200,000 whatever to charity. I don’t care about the money.” But then some might think that she can afford to forego that money, having already pocketed an advance of over $100,000 as well as the estimated $2.5 million# from the Government … for reasons still unexplained.
The second part of the trial will focus on the role of the media. TEN and Wilkinson are relying on qualified privilege in airing the allegation in the way they did some two years after the relevant events. Wrote Albrechtsen, “We will learn whether they acted professionally, checking sources, distinguishing between allegations, suspicions and proven facts, and whether it was in the public interest for them to air The Project interview.” And to air it at that time, “expeditiously” (see below), without a response from Lehrmann, who had not responded to emails sent a couple of days before The Project aired.
As to the upcoming defence arguments about qualified privilege, the court will consider the following factors in determining whether the publisher has acted reasonably:
- the seriousness of any defamatory imputation carried by the matter published,
- the nature of the business environment in which the defendant operates,
- the extent to which the matter published distinguishes between suspicions, allegations and proven facts,
- whether it was appropriate in the circumstances for the matter to be published expeditiously, and
- any other steps taken to verify the information in the matter published
The trial continues on Tuesday, December 5, 2023
# On Tuesday December 5, 2023, Higgins advised the court under cross examination that she personally received $1.9 million of the total settlement of $2.3 million.